Jaso & Ors v Central Criminal Court No.2 Madrid

A European Arrest Warrant must identify the currently enforceable judicial decision on which it is based. It need not give particulars of earlier warrants which no longer operate. Its factual particulars must adequately describe the alleged conduct, but need not demonstrate that the requested person will be convicted.

Extradition to a Convention state will not be refused on speculative concerns about its courts. A real risk of prohibited treatment or a flagrant denial of justice requires cogent evidence. Article 8 requires proportionality, not a separate exceptionality test, although the importance of honouring extradition arrangements means that striking and unusual facts will ordinarily be needed.

The appellants appealed under section 26 of the Extradition Act 2003 against a district judge’s orders for their extradition to Spain under European Arrest Warrants. Spain sought their surrender to stand trial for alleged membership of ETA, terrorism and, in one appellant’s case, possession of explosives.

The seven grounds concerned the warrants’ prescribed information, alleged reliance on evidence obtained by torture, possible violations of Convention rights, restriction of liberty for political opinions, observance of speciality and alleged prosecutorial bad faith. The central questions were whether the warrants were valid and whether any prospective conduct of the Spanish authorities required extradition to be refused.

1. The appeals were dismissed. Article 8.1(c) of the Framework Decision requires an EAW to identify the currently enforceable judgment, warrant or equivalent judicial decision on which that EAW is based. Section 2(4)(b) of the Extradition Act 2003 must be read conformably. It did not require particulars of an earlier EAW which was neither a basis for the current warrants nor still enforceable. The decision contemplated by article 8.1(c) was, however, an EAW rather than a domestic warrant.

2. The warrants sufficiently particularised the alleged dates, conduct and participation. Section 2(4)(c) requires adequate particulars of the accusation. It does not require evidence sufficient to establish guilt.

3. An extradition court may prevent abuse of its own process. Where evidence in the requesting state is alleged to have been obtained by torture, the relevant question was whether there was a real possibility that the requesting court would admit it. There was no evidence that the Spanish courts would fail to apply article 6 or would admit evidence proved to have been obtained by torture. Whether the evidence was so obtained was therefore for the Spanish courts, and the district judge was not required to investigate that allegation. In any event, her alternative factual conclusion was open to her.

4. The appellants had not shown a real risk of incommunicado detention. Their detention and extradition proceedings were already public, so the exceptional purposes permitted by Spanish law could not justify such detention. Nor did general evidence of sporadic ill-treatment establish strong grounds for believing that the appellants faced a real risk of treatment contrary to article 3. No real risk of a flagrant breach of articles 5 or 6 was shown.

5. Article 8 requires an assessment of whether extradition is proportionate to the legitimate aim of honouring extradition arrangements. “Exceptional circumstances” is not an independent legal test. Nevertheless, great weight attaches to that legitimate aim, so striking and unusual facts will ordinarily be required. No disproportionate interference was established.

6. Section 13(b) was not engaged. The restrictions associated with detention for serious terrorist offences were not shown to be imposed because of political opinions. There was no reasonable basis for the necessary causal link.

7. Spain was presumed to observe speciality in good faith absent compelling contrary evidence. One incomplete case under the former legislation did not rebut that presumption, particularly where Spanish law provided a remedy and the issuing judge had given an undertaking.

8. No prima facie case of prosecutorial bad faith arose from the omission of the appellants’ names from a separate investigation into a particular ETA cell. An extradition judge does not ordinarily examine the evidential merits of the foreign prosecution. The allegation of continuing ETA membership was not dependent on proving membership of that cell.

Collins J agreed with Dyson LJ.

1. High Court (Divisional Court): The appeals under section 26 of the Extradition Act 2003 were dismissed and the extradition orders upheld.
2. District Judge: District Judge Tubbs ordered the appellants’ extradition on 17 August 2007 pursuant to section 21(3) of the Extradition Act 2003.